Monthly Archives: November 2012

There’s been a lot written over the past few years about the future of the news industry — how the rise of the web and social media have disrupted it, and how traditional players like the New York Times and others can recover from this disruption and repair their business models by using things like paywalls. But a new manifesto from the Tow Center for Digital Journalism at Columbia University says that trying to figure out how to repair or rebuild the news industry is a waste of time: the paper’s authors argue that there is no such thing as the “news industry” any more, in any realistic sense, and the sooner both new and existing players get used to that idea the better off everyone will be.

The authors of the Tow report are well known to anyone who pays attention to the future of journalism: Clay Shirky…

Mashable.com has published an interesting article on the legal implications of Augmented Reality as a marketing and advertising tool.

In the past year, AR has increasingly moved out of the “gee-whiz” phase of just being a technological marvel into becoming a legitimate and increasingly adopted tool in the marketing arsenal of a significant number of companies. (The Mashable article cites Ikea and Philips electronics as two examples, but there are many more, with new-comers jumping on board each day.)

There are, however, a number of significant legal implications that companies need to factor into their decision of whether or not AR is an appropriate tool to use and, if so, how to implement it.

These legal concerns include general privacy and data security issues, truth in advertising regulations, child protection (COPPA) issues, just to name a few.

The takeaway here is: if you are using AR in your marketing and product delivery process OR if you are thinking of adding AR to the mix, make sure that you have thought through and implemented policies and procedures that will keep you on the right side of the applicable laws and regulations that apply. Failing to do so can lead you into a ugly (and expensive) virtual dead-end.

Based in this article from GeekWire, it looks like the University of Washington (a public institution, I believe) may have set itself up for a bit of a First Amendment issue with its “Live Coverage Policy” for journalists credentialed to cover its sports program.

The policy explicitly limits journalists to 20 Tweets per basketball game and 45 per football game. Violations can result in revocation of the violator’s press credentials. As a public institution, and thus, arguably, a “state actor”, the UoW may be violating the First Amendment with this policy.
Even if it is not, it certainly raises (once again) the issue of social media in the press and what its implications are for First Amendment speech (including, but not limited to freedom of the Press).

Of course, there are (albeit distant and indirect) additional issues of trademark, fair use, and the role of public university ownership and use of intellectual property implicated in these situations as well. Those, however, are subjects for another time.

As reported by Business Insider, a recently handed down decision in a case against Zappos stemming from January 2012 hack of Zappos customer databases now makes it clear that Courts taking much harder look at the enforceability of Terms of Service provisions posted by websites.

Specifically, the Court in the Zappos case found the mandatory arbitration provision contained in Zappos’ ToS to be unenforceable, at least in part because it did not require a user to review and explicitly accept the terms of the ToS. Zappos, like many websites these days, made use of a “browerwrap” ToS, which provide that a vistor of the site automatically accepts the terms of the agreement simply by using the site. The Court found that such a provision did not demonstrate a “meeting of the minds” between Zappos and users of its web site, and thus the ToS did not constitute an enforceable contract.

Ironically, a growing body of case law suggests that if Zappos were to have created a “click-wrap” agreement, that is one that required the user to scroll through the agreement and click a button specifically indicating agreement with the terms of the ToS, that the Court would have found the ToS to be enforceable.

The takeaway here for companies engaged in business on the web: courts are casting increasing scrutiny on the enforceability of Terms of Service agreements associated with such web-based commerce. Understanding what is enforceable and what is not may (and modifying ToS agreements where necessary) may be a key business decision, with costly repercussions if the agreements turns out to be unenforceable.